Ramirez v. Foss

          ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          PHILIPS S. GUTIERREZ, UNITED STATES DISTRICT JUDGE

         Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the other records on file herein, and the Report and Recommendation of the United States Magistrate Judge ("R&R," ECF No. 30). The Court also has reviewed Petitioner's objections to the R&R ("Objections," ECF No. 33), as well as Petitioner's other filings postdating the filing of the R&R.

         As required by Federal Rule of Civil Procedure 72(b)(3), the Court has engaged in de novo review of the portions of the R&R to which Petitioner specifically has objected. The objections generally reiterate arguments made in Petitioner's substantive briefs (see generally ECF Nos. 1, 28), and they lack merit for the reasons set forth in the R&R. Below, the Court addresses arguments Petitioner first asserts in the Objections and the post-R&R filings.

         Petitioner's Objections present a flurry of stream-of-consciousness allegations showing errors in the state-court proceedings. He asserts that his appointed trial counsel or appellate counsel was incompetent and filed a deficient appeal. (Objections 2-3, 5-6.) Petitioner alleges that the sentence the judge imposed was "only obvious out of personal spite from judge, against Petitioner." (Id. at 8.) Petitioner also mentions some trial proceedings, including a motion for a change of venue, motion for a Marsden hearing, and request for "Re Appointed Attorney." (Id. at 4.) Additionally, Petitioner seems to argue that a state court judge's impartiality "might and should be questioned," noting that the trial judge made inappropriate comments and may have known a juror; that he should have been given "foreign country consulate's assistance"; that he was denied due process because of his "inability to comprehend the English and law language"; that he has been deprived of his rights under the Equal Protection Clause of the Fourteenth Amendment; and that the prosecutor committed misconduct because he was driven by money "to imprison regardless of right and wrong only to discriminate against minorities." (Id. at 4-8, 10.) The allegations here are not pertinent to the single claim in the operative Petition, which challenges the state appellate court's decision not to remand his case for resentencing as a denial of his federal right to due process. (See Petition 6; see also LD 10, at 8-18.) The Court declines to exercise its discretion to entertain these unsupported, unsubstantiated allegations, which Petitioner first raised in his Objections. See United States v. Howell, 231 F.3d6l5, 622 (9th Cir. 2000); see also, e.g., Blunk v. Ryan, 728 Fed.Appx. 736, 737 (9th Cir. 2018) (declining to consider "brand-new stand-alone claim for relief that could have been raised long before the magistrate judge considered his habeas petition" but instead was raised "for the first time in his objections").

         Petitioner objects to the R&R by arguing that his appellate counsel was ineffective because he failed to predicate Petitioner's resentencing argument before the Court of Appeal on an alleged violation of his Fourteenth Amendment rights. (Objections 3.) The Magistrate Judge made this observation to establish the standard of review of Petitioner's claim. (See R&R 5.) To the extent Petitioner challenges the standard of review, the Court concludes that de novo review is appropriate. To the extent Petitioner claims ineffective assistance of counsel on this basis for the first time in the Objections, the Court declines to consider this new claim. See Howell, 231 F.3d at 622; Blunk, 728 Fed.Appx. at 737.

         Petitioner argues that the Court of Appeal's decision not to reach the question of whether California Penal Code section 1385 applied retroactively to Petitioner's case "indicates that you have not yet fully agreed with the Attorney General that given the court's decision to impose the upper term on both enhancement's [sic] in addition to the maximum term of the substantive charge." (Objections 3.) Like the Court of Appeal, this Court does not reach-and does not need to reach-the question of whether Penal Code section 1385 applies retroactively to deny Petitioner's requested relief. (See generally R&R 6-11.)

         Finally, in Petitioner's recent filings (ECF Nos. 31, 36), Petitioner has requested a stay and abeyance of this action. The Court observed that Petitioner neither clearly articulated whether he sought a stay or an extension of time, nor provided a legal argument supporting a request for a stay. (ECF No. 34, at 1-2.) The Court also noted that the Petition is fully exhausted and that the case was nearly ready for final disposition. (See ECF No. 34, at 2.) Regardless, the Court invited Petitioner to file a motion to amend his Petition or move for a stay. (Id.) Petitioner failed to do so in the time permitted by the Court.

         To the extent Petitioner requests a stay in his post-R&R filings, Petitioner's request must be denied. A district court may stay and abey a federal proceeding in order to allow a petition to exhaust claims in state court if the petitioner shows (1) there is "good cause" for the petitioner's failure to exhaust his claims earlier; (2) the unexhausted claims are not "plainly meritless"; and (3) the petitioner has not engaged in "abusive litigations tactics or intentional delay." Rhines v. Weber, 544 U.S. 269, 277-78; accord Dixon v. Baker, 847 F.3d 714, 720 (9th Cir. 2017).

         As a preliminary matter, Petitioner has not sought leave from this Court, or Respondent's written consent, to amend his Petition to add claims for which he now requests a stay. See Fed. R. Civ. P. 15(a)(2). The operative Petition, as filed, is fully exhausted. Accordingly, a Rhines stay is not appropriate. See Rhines, 544 U.S. at 275-76; Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016).

         Liberally construing Petitioner's request as a motion to stay the case pursuant to Rhines and to amend the Petition, the request must be denied because Petitioner has not identified any unexhausted claim he seeks to exhaust in state court or add to the Petition. (See Objections 9 ("My recommendation is a prayer in legal sense to be granted stay and abey to deconstruct to reconstruct and rebuttal on state courts."); ECF No. 31, at 1 (titling document "Objections to the Report and Recommendation and Motion to Stay and Abeyance" without stating any claims for which he seeks to stay and abey the action); ECF No. 36, at 4-5 (referring to "proposed claims" without identifying any such claims).) To the extent Petitioner seeks to prosecute his allegations in the Objections relating to irregularities in the trial proceedings, judicial bias or misconduct, prosecutorial bias or misconduct, or ineffective assistance of counsel, Petitioner fails to support his claims with citations of the record or other supporting evidence. (See Objections 4-8, 10.) Petitioner's vague references to additional claims he may seek to pursue are far too cursory to merit habeas relief. See Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011) ("[Petitioner's] cursory and vague claim cannot support habeas relief."); James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) ("Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.").

         Further, Petitioner's unclear references to underdefined additional claims are not sufficient to meet his burden to show "his claims are not plainly meritless," so a Rhines stay is inappropriate. Dixon, 847 F.3d at 720; see also Rhines, 544 U.S. at 277. Finally, the Court declines to exercise its discretion to issue a stay pursuant to its inherent authority to control its docket. See Landis v. N. Am. Ca, 299 U.S. 248, 254-55 (1936).

         IT THEREFORE IS ORDERED that (1) the Report and Recommendation of the Magistrate Judge is accepted and adopted; and (2) Judgment shall be entered denying the ...